J&A Cantore, LP v. The Village of Villa Park
2017 IL App (2d) 160601
| Ill. App. Ct. | 2017Background
- Dispute involves a 58-foot strip along the east side of 711 S. Route 83: western 25 feet lies in Villa Park; eastern 33 feet lies in Elmhurst (the “disputed property” / Elmhurst’s portion = 33-foot West Avenue).
- H.O. Stone Addition (plat recorded 1925) shows a 33-foot strip labeled “West Avenue”; 3rd Spring Road Addition (1910) shows a 25-foot strip abutting it—together forming a full street.
- Elmhurst annexed portions of the H.O. Stone Addition (1962), later vacated certain intersecting east–west streets (1968) but did not vacate West Avenue; Elmhurst acquired fee title to adjacent lot(s) (1974).
- Elmhurst leased the relevant territory (including the Elmhurst portion of West Avenue) to the Park District in 1983 and again in 1995; Park District developed park/trail uses (Salt Creek Greenways Trail).
- Plaintiff (J&A Cantore) bought the parcel in 2014, claimed adverse possession of the disputed strip, sued to eject Elmhurst; Elmhurst moved to dismiss under 735 ILCS 5/2-619, asserting statutory (plat) dedication and acceptance, and that the land is held for public use (defeating adverse possession).
- Trial court granted Elmhurst’s 2-619 motion (dismissal with prejudice); appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Elmhurst’s 33-foot strip was statutorily dedicated as a public street | Plat did not expressly say “hereby dedicated” or “public”; mere labeling of a road is insufficient for statutory dedication | H.O. Stone Addition met Plat Act requirements; street shown and named on face of plat, so statutory dedication vested fee in public | Court: Statutory dedication established from the 1925 plat (plat met requirements and showed intent to dedicate) |
| Whether Elmhurst accepted any dedication of the strip | No express municipal acceptance; lack of improvements and some private use (fence, stored vehicles) show no acceptance | Acceptance may be implied by municipal acts: annexation, improvement/maintenance of other platted streets, vacation ordinance excluding West Avenue, obtaining adjacent fee title, and leasing to Park District | Court: Acceptance established (implied acceptance from actions, annexation, improvements of other streets, vacation omission, fee acquisition and leases) |
| Whether the land is held for "public use" such that adverse possession does not run | Park/leasing is local; plaintiff argues park use is local and not a statewide public use, so adverse possession could run | West Avenue was dedicated as a street (classic public use); lease to Park District under right of reentry and inclusion in regional trail demonstrates continuing public character | Court: Land held for public use (streets are public; even leased parkland with reentry preserves public character), so adverse possession is barred |
| Whether dismissal under 735 ILCS 5/2-619 was proper on these affirmative defenses | Plaintiff: factual disputes (ownership, use, acceptance) preclude dismissal | Elmhurst: submitted affidavits, plats, deeds, leases establishing statutory dedication, acceptance, and public use as an affirmative matter | Court: 2-619 dismissal proper—Elmhurst established affirmative matter defeating adverse-possession claim; judgment affirmed |
Key Cases Cited
- Thompson v. Maloney, 199 Ill. 276 (Ill. 1902) (face of plat showing half-width circumferential strips can evidence intent to dedicate streets)
- Kennedy v. Town of Normal, 359 Ill. 306 (Ill. 1934) (unnamed or partially shown strips on a plat may be statutory dedications when proprietor’s intent appears on the face of the plat)
- Bigelow v. City of Rolling Meadows, 372 Ill. App. 3d 60 (Ill. App. 2007) (plat must clearly indicate dedication; context matters—unincorporated subdivision treated more cautiously)
- Semmerling v. Hajek, 258 Ill. App. 3d 180 (Ill. App. 1994) (plat labels like "driveway" and other indicia may negate a statutory dedication; mere labeling is not always enough)
- Brown v. Trustees of Schools, 224 Ill. 184 (Ill. 1906) (for adverse-possession tolling, "public use" means interest of the people of the state at large—streets/highways qualify; purely local uses may not)
- Miller v. Metropolitan Water Reclamation Dist. of Greater Chicago, 374 Ill. App. 3d 188 (Ill. App. 2007) (property held by a public body, even if leased, can retain state-wide public character and be immune from adverse possession)